Written by Jan Avau and Alessandro D’Alfonso

Updated on 25 August 2015

On 17 July 2013, the European Commission adopted its legislative proposal for the establishment of the European Public Prosecutor’s Office (EPPO). The Office would focus on offences against the EU’s financial interests. The draft regulation is based on Article 86 TFEU, introduced by the Lisbon Treaty, which allows the creation of such an office through a special legislative procedure. This requires unanimity in the Council and the consent of the European Parliament. Should unanimity not be reached, the EPPO could still be created under enhanced cooperation if at least nine Member States so agree. In addition, Article 86 TFEU provides the possibility for the European Council to extend the powers of EPPO to include acting against serious crimes with a cross-border dimension.

At present the Commission’s proposal is being discussed in the Council.

Background of the proposal

The concept of an EPPO has been the subject of debate for some 15 years. While the European Commission was in favour of setting up an EPPO throughout, other views remained divergent. A major step was taken with the Treaty of Lisbon, which introduced Article 86 TFEU providing a legal basis for an EPPO.

In its impact assessment , the Commission justifies its proposal by referring to the significant consequences of fraud against the EU’s financial interests (see the impact assessment’s box on the scale of fraud against the EU Budget ). In recent years, ‘suspected fraud’ has averaged about € 500 million annually. However, according to the Commission there are good reasons to believe that the actual fraud could amount to up to €3 billion per year, which would represent around 2% of the annual budget. Accurate numbers are not available the Commission explains, as data from Member States are not always reliable. In addition, it is very difficult to measure the scale of undetected criminal activities.

Both the EU and its Member States have the obligation to protect the financial interests of the Union (Article 325 TFEU). However, the Commission considers that in practice the EU has virtually no power to intervene in cases of criminal misuse of EU funds , since investigation, prosecution and bringing to justice in criminal cases remain part of the exclusive jurisdiction of the Member States. The role of the Union bodies active in the field of protection of the EU’s financial interests, such as Eurojust, Europol and the European Anti-Fraud Office (OLAF), has increased over the years but still mainly focuses on coordination, cooperation, exchange of information and administrative investigation.

Since Member States implement around 80% of EU expenditure and collect its own resources, they have a significant role to play in fighting offences against the EU budget. However, policies for prosecuting fraud against the EU’s financial interests differ considerably from one EU country to another. As some findings show, the rate of successful prosecutions concerning offences against the EU budget varies between 19% and 92% among Member States. Furthermore, in the case of infringements with a cross-border dimension, it is often difficult to determine the relevant jurisdiction. In this respect, the Commission’s impact assessment gives the example of an OLAF case , which concerned a suspected fraud with multiple transnational elements. OLAF identified the Member State which should have been in charge of the initiation of the prosecution, but the Member State in question declined jurisdiction.

General overview:

European Public Prosecutor’s Office / Website European Commission, DG Justice. This website provides an introduction to the concept of the EPPO and links to documents regarding the current proposal and the history of the debate on the EPPO.

The European Parliament

Article 86(1) TFEU provides for a special legislative procedure requiring unanimity in the Council and the consent of the European Parliament. Please note that as a general rule, the Council and the European Parliament have full co-legislative powers (ordinary legislative procedure) in the fields regarding judicial cooperation in criminal matters (Art. 82 TFEU and following) and combatting fraud (Art. 325 TFEU).

The main documents from the European Parliament can be found in the procedure file in the legislative observatory (OEIL) 2013/0255(APP) . See in particular:

The future of Eurojust / Petra Jeney. Study requested by the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs, PE 462.451, April 2012, 225 p.
See in particular points “3.3 Establishement of the European Public Prosecutor’s Office?” and “4.3 Evaluation of the intertwined future of Eurojust and the European Prosecutor’s Office”.

The Council

In order to create the EPPO, the Council needs to act unanimously after obtaining the consent of the European Parliament. If unanimity is not reached, a group of at least nine Member States may decide to resort to enhanced cooperation.

Information about the progress of the Council’s work may be obtained in the following ways:

6116/14 , 5/2/2014, note from the Presidency containing the observations of the Member States on the EPPO proposal

13863/1/13 , 14/10/2013, note from the Presidency: European Public Prosecutor’s Office: A Constructive Approach towards the Legal Framework – Conclusions of the conference organised by the Lithuanian Presidency in cooperation with the European Commission and the Academy of European Law (Vilnius, 16-17 September). The following three topics were dealt with:

National Parliaments

The “yellow card procedure”

According to a new provision introduced by the Lisbon Treaty (A rticle 7(2) of Protocol No 2 TFEU ) the Commission has to reconsider its proposal if a sufficient number of national parliaments has sent reasoned opinions stating that the draft legislation does not comply with the principle of subsidiarity. The Commission may decide to maintain, amend or withdraw the draft, but must give the reasons for its decision. This is the so-called “yellow card procedure”.

Interparliamentary meeting

On 17 September 2014 the French National Assembly European Affairs Committee held an interparliamentary meeting in which Members of 16 national parliaments took part to discuss the legislative proposal for the establishement of the European Public Prosecutor’s Office.

Legal and institutional aspects of the European Anti-fraud Office (OLAF): an analysis with a look forward to a European Public Prosecutor’s Office / Inghelram, Jan F. H. , Groningen: Europa Law Publishing, 2011.

The material scope of competence of the European Public Prosecutor’s Office: Lex uncerta and unpraevia ? / John A. E. Vervaele in ERA Forum, June 2014, vol. 15, iss. 1, pp 85-99.

A European public prosecutor: potential and pitfalls / Marianne Wade, in Crime, Law and Social Change, vol. 59, iss. 4, pp 439-486, 2013.

Eurojust and the European Public Prosecutor Perspective: From Cooperation to Integration in EU Criminal Justice? / Jörg Monar, in Perspectives on European Politics and Society, 2013, v. 14, n. 3, pp 339-356.

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